CCLFR research seminar with Professor Duncan Sheehan (Leeds University)

Timings of the event : 12:00-13:00

Title: “Quasi-Conversion", Crypto-Assets and the Tertium Quid

Abstract: The classification of crypto-assets as a tertium quid – a third category of personal property law, apart from things in possession and things in action - is reflected in the Property (Digital Assets etc) Bill currently making its way through Parliament and in the case of D’Aloia v Persons Unknown [2024] EWHC 2342. One of the reasons, but not the only reason, why the Law Commission proposed this legislation to classify crypto-assets as a tertium quid is that, despite being intangible, they are involuntarily alienable. By this they mean that it is possible to steal a bitcoin. Despite the crypto-currency’s being intangible and therefore not possessable, it can be controlled, and the Law Commission propose that an owner be afforded an action developed by analogy with conversion to protect this right to control when their crypto-asset is stolen. This paper shows why chattel torts like conversion or trespass cannot be sensibly modified to provide protection for the crypto-assets’ owner. If this is right, it undercuts the reasoning for a tertium quid. Further, if we see crypto-assets as things in action this does not imply a remedial lacuna, despite the Commission’s claims to the contrary.